These are some remarks on the State and the conceptual possibility of consent, which I originally prepared for my appearance at the Molinari Society’s Authors-Meet-Critics last week in Philadelphia, but which I opted not to read because of time constraints. Fortunately, blogs are not subject to the same constraints of time or topicality, so I have expanded a bit on what I originally prepared, and now I offer them to you, gentle reader.

In their remarks on Crispin Sartwell’s Against the State, both Christopher Morris and Jan Narveson object to Sartwell’s conclusion that existing states are conceptually incompatible with the very possibility of consent (40, emphasis added). Specifically, they object to the strength or the sweep of the incompatibility claim: Morris thinks that this is an exaggeration and an unnecessary one, and Narveson insists that such a strong claim of incompatibility cannot be taken literally. Each attempts to refute the incompatibility claim, at least as originally stated, by means of counterexamples. Presumably, if you can point to at least one case where individual consent to be ruled is actually secured by an existing state, then clearly (modal logic and all that) it must not be logically impossible for existing states to secure it. And each argues that Sartwell could have done just as well, for the purpose of undermining consensualist accounts of legitimacy, with a much weaker claim. Narveson goes so far as to attribute this weaker claim to Sartwell, insisting that Sartwell really must have meant to say, not that existing states operate in a way that logically precludes any of their subjects from consenting to their rule, but rather that they operate so as to preclude the unanimous consent of all their subjects — that is, that there must always be at least one dissenter in any given state, not that there never can be any non-dissenters.

What then are the counterexamples to be considered? Narveson mentions those who voted in a government election for the party currently in power. Morris, for his part, says that at least some people seem voluntarily to perform acts that seem to constitute consent, and they seem to do so with the requisite understandings. I’d be interested to know whether the performances Morris has in mind are performative utterances like the Pledge of Allegiance or citizenship oaths, where the utterer explicitly declares her support for a particular government, or whether he also means to include other kinds of acts, which have some other purpose but from which consent can reasonably be inferred. But whatever sorts of spontaneous or ritualized performances Morris or Narveson may have in mind, what puzzles me is that, while they indicate these cases as counterexamples to Sartwell’s strong claim — as presented on page 40 of Against the State — neither Morris nor Narveson seems to engage with the direct argument for which the strong claim is the conclusion — as presented on page 50 — in which Sartwell explicitly considers and rejects the claim that these sorts of individual performances could count as consenting to the State’s rule. Thus:

… consent is always compromised by force; the mere existence of effective force dedicated to some end constitutes coercion toward that end, whatever you may think or want. If I consent to abide by the law when that law is enforced by a huge body of men with guns and clubs, it is never clear, to say the least, whether my consent is genuine or not. … It will always be prudent for me, under such circumstances, to simulate consent, and there are no clear signs by which a simulation could be distinguished from a genuine consent in such a case. That I am enthusiastic in my acquiescence to your overwhelming capacity for violence—that I pledge my allegiance according to formula, sing patriotic songs and so on—does not entail that I am not merely acquiescing. … [T]he mere existence of an overwhelming force by which the laws will be enforced compromises conceptually the possibility of voluntarily acceding to them. Or put it this way: the power of government, constituted by hypothesis under contract, by which it preserves the liberties and properties of its citizens, is itself conceptually incompatible with the very possibility of their consent. (50-51)

That is, the standing threat of overwhelming force ensures that any individual performance is made under duress, ruling out the preconditions for any genuine consent. I’d be interested to hear what Narveson and Morris make of this argument for rejecting their purported counterexamples to the strong claim. Unless there is some response to it, then it seems like the attempt to use individual performances as evidence for the actual existence of (at least some) individual consent to the State, which is to say, as evidence against Sartwell’s strong incompatibility claim, is simply question-begging.

Now, I think it would be perfectly fair for Narveson and Morris to object that Sartwell’s argument, as stated, does need some tightening, and may also need some elaborating. But I think that once the tightening and the elaborating have been done, the argument does in fact provide a basis for a very strong version of Crispin’s strong incompatibility claim — and the strong version of that strong claim will be of general interest for anyone who intends to connect their notion of political right to respect for individual liberty, and their notion of liberty to respect for individual consent in the use of person or property.

Now, if someone goes through the motions of consenting while under a background threat of force against dissenters, for Narveson or Morris to be able to insist that it is possible for that to express genuine consent only if they deny at least one of the following principles:

Any seeming expression of consent to a condition C, if given under a standing threat of force against refusers, is given under duress.

Any seeming expression of consent to a condition C, if given under duress, cannot be treated as a genuine expression of consent to C.

If you cannot do anything that could be treated as a genuine expression of consent to a condition C, then you do not count as having consented to C.

All three seem initially plausible, to me at least, but if Narveson or Morris accepts all three, then it quickly follows that he cannot count as having consented to any condition C when there is a background threat of force against those who refuse to consent to C. Since that’s how existing states roll, nobody could do anything that would count as having consented to the state — and that would remain the case even for those who say that they consent with all their heart out of an earnest feeling of duty and with a great deal of pride. If all three principles are accepted, then even if you want to give your consent to the State’s rule over you, you can’t do it, because the state’s unilateral imposition of the terms preempts your efforts to consent to the terms.

So, if Narveson or Morris wants to avoid that conclusion, he’ll have to pick one of the principles to reject, and the question is which one to pick.

Principle (1) looks like it’s not very far off of a definition of acting under duress (or performing the specific action of seemingly-expressing-consent under duress). I doubt that much of anyone will be inclined to reject that — or, if they are so inclined, it will probably be because they first rejected a principle very similar to principle (2) — basically, (2) modified so that under a standing threat of force against refusers substitutes for under duress — but are inclined to think that any case of genuine consent should (therefore) not be considered a case of action under duress. In which case you have a counterexample to (1) rather than to (2), as I’ve stated the principles. But if so, then the motivations for rejecting (1) will be similar enough to the motivations for rejecting (2) that my comments below should apply equally to either.

Principle (2) may look much more promising to someone who wants to defend the claim that people may be voluntarily consenting to state authority — even though they would have been forced to acquiesce even if they had tried to refuse. The idea would be something like this: Look, you’ve given us a perfectly good reason to think that there are at least some people who would seem to be consenting but aren’t actually consenting. Fine, but why think their situation affects those who sincerely do want to agree to the terms the State sets down? At most this seems like an epistemological problem — that we may have trouble finding out whether somebody consented or not just on the basis of their outward actions. It doesn’t make it logically impossible for them to have done so.

Some of the ways in which Sartwell tries to state his case might indeed incline you towards a worry like this — as when he argues that It will always be prudent for me, under such circumstances, to simulate consent, and there are no clear signs by which a simulation could be distinguished from a genuine consent in such a case. The mere fact that a second or third party couldn’t distinguish a simulation from genuine consent wouldn’t (just by itself) warrant the conclusion that there can be no such thing as genuine consent. But I think that there are two possible responses to this worry. First, if the worry is purely epistemic, it still poses a serious problem for any consensualist justification of the state — if it is the case, as I think it is, that it is illegitimate not only to use someone’s person or property without her consent, but also to use someone’s person or property when there is no possible way for you to find out whether she has consented or not. (Consider this an argument to the effect that the State cannot be legitimate because it has no reliable procedure for determining whether its rule over any given subject is in fact legitimate or illegitimate. Take that, Robert Nozick.) But, secondly, and more to the point, I think that there is a stronger interpretation of Sartwell’s argument, on which the worry is logical rather than epistemological, because the lack of clear signs of a distinction is not just a lack of diagnostic symptoms, but rather a lack of necessary criteria.

Think of it this way. The claim that a seeming expression of consent does not count, when given under duress, is usually justified by something like the following principle:

Principle of the Alternative: If Norton wants to place Twain’s person or property under a condition C, then Twain’s performing an action A expresses consent to C only if there is some alternative action B, which Twain could have performed, which would have counted as refusing consent to C.

I take this principle to be a necessary condition for a performance to meet the concept of expressing consent. An expression of consent is necessarily a choice among alternatives; if there is nothing that would even count as a refusal, then what we have is just not a matter of consent. Whatever Twain’s personal feelings about A or C may be, what he’s doing when he does A may be an expression of deference, or of obligation, or of some other similar sort of commitment. But whatever it is, it’s just not an expression of consent.

More strongly, and more importantly for the purposes of our argument, it is not enough that there just be something that would count as refusing consent. Consent is a property of transactions between two or more parties, and for you to have it, there must not only be something that would count as a refusal; your partner must also be willing to count that performance, whatever it is, as a refusal which she is bound to respect. An alternative must not only be available; there must be some reasonable expectation that the alternative would be practically effective.

Opt-Out Principle: If Norton wants to place Twain’s person or property under a condition C, then Twain’s performing an action A expresses consent to C only if there is some alternative action B, which Twain could have performed, which would have counted as refusing consent to C, and which Twain can reasonably expect Norton to accept as a decisive reason not to place Twain’s person or property under C.

Again, I take this principle to be a necessary condition for a performance to count as expressing consent; just as the lack of a possible refusal makes the issue one of obligation rather than consent, if Twain performs an expressive act without any expectation that there is some expression of refusal that Norton would consider himself bound to respect, then the issue is no longer one of consent, but rather of unilateral command. And again, it hardly matters what Twain’s personal feelings about the command may be. Maybe he’s into that kind of thing. But whatever he is doing, he is not succeeding at doing anything that would count as expressing consent. You can’t consent if you’re never asked, and if there really is nothing that Norton would count as a binding refusal, then Twain has never even been asked, in any meaningful way.

I think the Principle of the Alternative and the Opt-Out Principle, or something a lot like them, are central to Sartwell’s worry about the difficulty of telling a genuine willingness to accept the state’s terms apart from a willingness simulated only under duress. I also think that these principles, or something a lot like them, provide the only reasonable explanation for why, as a general thing, we should disregard a seeming expression of consent that was only given under duress, and would not have been given but for the threat. (It might seem important that such seeming expressions are not sincere reflections of the utterer’s inner state. But that by itself is not enough. I might freely give an insincere expression of consent — say I consent to let you use my car, but I secretly intend to call the cops on you and report it stolen. But then the expression, even though insincere, is still genuine consent; given my expression of consent to you, it would be false for me to claim that you had stolen my car from me, no matter what I may have whispered to myself in the dark recesses of my soul.) But if both principles, or something a lot like them, express necessary conditions for a performance to genuinely express consent, then it looks like Principle (2) follows without much delay. And it follows in its full logical force — the worry here, remember, has nothing to do with whether or not Norton knows that Twain is genuinely expressing consent; it has to do with whether or not necessary criteria have been met for Twain’s expressions to count as expressions of consent. If the state rigs the situation in such a way that there is nothing it would count as opting out, then it has also rigged the situation in such a way that there is nothing it could really count as opting in; opting just isn’t part of this game. Neither expressing consent nor expressing dissent are even options that are on the table; if the state gives non-negotiable, unilateral commands, merely being cheerfully responsive to those commands is not enough to count as consent in any meaningful sense. And if this is the case, then it ought to be clear that it immediately defeats any claim that, for example, voting, or paying taxes, or reciting the Pledge of Allegiance, or anything of the sort, could count as giving your consent to be ruled by the government that you vote for, or pay taxes to, or pledge your allegiance to. If not voting, not paying your taxes, not reciting the Pledge, or whatever, would exempt you from the terms that the United States imposes on you, then those who chose to do so anyway might well be counted as consenting to be ruled by the United States. But anarchist activism would also be an awful lot easier than it is, and the United States would not, in fact, even amount to a State — at least, not in any sense of the word that anarchists use when they proclaim all States to be illegitimate (because nonconsensual). In the real world, where government taxes and government prohibitions fall on the heads of the voters and the non-voters alike, there is, as Lysander Spooner argues, no way that an performance under such conditions can count as consent to government.

In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having ever been asked, a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, be finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot – which is a mere substitute for a bullet – because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency, into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.

Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby ameliorating their condition. But it would not therefore be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or ever consented to.

Therefore a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being. Consequently we have no proof that any very large portion, even of the actual voters of the United States, ever really and voluntarily consented to the Constitution, even for the time being. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to injury or trespass from others.

Spooner, for his own reasons, couches his argument in epistemological terms — or, more specifically, in terms of legally cognizable proof. But, once again, the argument that he frames epistemically can be reframed in terms of the conceptual criteria for a public expression of consent by means of the Principle of the Alternative and the Opt-Out Principle.

I suspect, then, that someone who wants to defend the claim that it is possible to consent to the state’s authority — in spite of the background threat of coercion against anyone who attempts to refuse — will ultimately have to fall back on rejecting Principle (3). That is, in order to defend the claim the claim they are trying to defend, they will need to make some kind of distinction between the property of consenting as such, and the property of expressing consent. In fact I think it’s likely that this is the real core of Morris’s and Narveson’s intuitive sense that of course there must be some people who are consenting to existing states. It may seem like we just know that it’s possible to consent to the state, because we think we see it in people all around us, in their everyday practices and beliefs — whatever attitude the state may have towards them, their personal attitudes involve an acceptance of the state. We might have the same feelings ourselves, or even if we do not, we might imagine that we have them. We might even express this attitude of acceptance with a form of words like I want the State to rule me, or even I consent to the authority of the state. But if the discussion is about consent, and not merely about acceptance or desire, and if consent is supposed to have any kind of weight in ethical deliberation about the transactions between two or more agents, then I doubt that such a notion of private attitudes of consent — attitudes which might not only be unexpressed at the moment, but might not even be expressible in principle, under the prevailing circumstances — is likely to be coherent. That is, I doubt that private acceptance of the state can be understood as consent, at least in any sense that would preserve the connection between consent and political legitimacy, which is after all what inspired us to introduce the question of consent into the discussion of political theory in the first place.

If there is no effective possibility of refusal, then there is no possibility of publicly expressing consent, and if there is no possibility of publicly expressing consent, then there is no possibility of consenting. If existing states make a standing threat to force people to submit to their terms, even if they do not agree to those terms, then governments cut off any effective possibility of refusal, and thus nobody can do anything that would count as consenting to be ruled by an existing state — even if she wants to do so, and even if she sincerely says that she agrees to the terms. Since all existing states do make that standard threat, no existing state rules by consent over any individual subject. And if governments derive their just powers from the consent of the governed, then no government has any just powers at all. Even the most patriotic pledger or the most dutiful voter has not consented to be bound by the terms the state imposes, even if she tried to get herself bound by them; she is not bound in conscience to pay taxes, or to obey government prohibitions, or to obey the government’s requirements in any other way, for even one second longer than she wants to. And no existing state has either the duty or the right to enforce those terms on her.

—Rad Geek

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“The remarks are about the conceptual preconditions of consent, and a rather strong claim which Crispin Sartwell made in — specifically, his claim that .”

Seems like this is missing the most important part of the sentence. I think I can fill it in from context, but I’m almost reluctant to read the rest of your essay for fear of misunderstanding the whole thing.

I found it interesting (but not surprising) that Narveson claimed that “The onus is on the serious anarchist to argue that the prospects for peace and prosperity are better under the no-government condition than under even that fairly mediocre specimen of the state at work.” It seems to me that it should be the other way around. In other words, if someone else wants to govern another person’s life, then the burden of proof should be on them to show that it would make for a more peaceful and prosperous society. What do you think, Charles?

What would be your reply to the oft-cited argument that there is an alternative action B = “if you don’t like it, you can always leave”? It seems that the Opt-Out Principle needs to say more about the nature or cost of action B than simply “there is” one or you might run afoul of this. I guess this speaks to it being necessary but perhaps not sufficient.

One answer might be that the possible action B cannot be such that it would disruptive to Twain’s “ongoing projects”.

Well, burden of proof is a tricky thing. As a general thing, I would agree that the burden of proof is on the statist, not on the anarchist, because it’s the statist who is arguing for laying positive obligations on people who have done nothing by way of accepting those obligations, and it’s the statist who’s claiming that special exceptions need to be made to ordinary moral rules like Don’t extort money from people by force and Don’t shove around people who aren’t threatening to violate anybody’s rights, and because it’s the statist who is insisting that there is some special case where something very widely regarded to be obviously wrong and destructive — monopolies on needed services enforced by unaccountable violent power — is somehow necessary or even beneficial when it comes to defense or mediating disputes. Statists need to provide some kind of justification if they are going to insist on these special claims and special exceptions for agents of the State, and if they don’t provide one, anarchy wins by default.

On the other hand, anarchists do often make strong claims which may take on the burden of proof in a given conversational context. If I claim that the mass murders (through war and democide) of the 20th century would have been impossible without coercive government, then that’s a strong claim that I need to prove to the statist. And if I intend to use that claim as my argument against the State as such, then I do need to demonstrate to the statist that it’s not just really bad states that do that kind of thing, but that there’s something about the State as such which leads to that sort of thing, not just something special about really bad states; or, if it is something special about really bad states, that there’s something about the state as such which causes most states to end up being really bad, or which makes it impossible to effectively prevent states from becoming really bad, or something like that. If all I’m doing is comparing the worst possible states with a mediocre or best-case sort of anarchy, then I’ve certainly not discharged all of my dialectical obligations. The burden of proof shifts in a case like this because the anarchist is no longer just claiming that the statist needs to provide a justification which she may not have yet provided; she is now making the further claim that there are conclusive reasons to rule out the possibility that any such justification could be good enough to overcome (for example) humanitarian objections to what states routinely do.

To be fair to Narveson, Sartwell certainly does make some strong claims like those I mentioned, and uses them as arguments for anarchy over statism. To be fair to Sartwell, he does give several direct arguments of just the sort I suggested he’d need to give — by appealing, for example, to the way in which states tend to become more and more invasive, and more and more lethal, and to the way in which they make that outcome hard or impossible to avoid by overwhelming all attempts at restraining their power.

So Sartwell does take on the burden of proof; but I think he does a perfectly good job of showing why the worst-case scenarios are good arguments against even mediocre sorts of states.

Incidentally, I also think that Narveson is dead wrong to give the United States under President George W. Bush as an example of a mediocre state, rather than a worst-case sort of state. I think that sort of judgment only seems plausible if you’re only paying attention to how the U.S. government treats the people that it recognizes as its citizens; not if you’re paying attention to how it treats the people subjected to its power in, say, Iraq or Afghanistan or Vietnam or Hiroshima or Nagasaki.

Well, the Opt-Out Principle is intended only as a necessary condition for consent, not a sufficient condition. (And specifically as a necessary condition that seems to line up with what Sartwell says about consent being compromised by the threat of force.) If there are other conditions that need to be satisfied, in addition to the Opt-Out Principle, which Why don’t you just leave? justifications run afoul of, then I don’t think that’s much of a problem for my argument.

In any case, Narveson and Morris both seem to have overt performances in mind, not just the failure to vacate the State’s claimed territory. So if someone were to respond by proposing vacating as a possible value for B, which satisfies the Opt-Out Principle even when A is something like voting in government elections or sincerely reciting the Pledge of Allegiance, I’d say that that isn’t actually a salient alternative performance to A. I.e., it would be appropriate to answer the question Did you say the Pledge of Allegiance? with No, I sat there and I didn’t say a word, but it would be inappropriate — a sort of conversational non sequitur — to answer, No, I went to Mexico. And the difference between the two responses has to do with the logical connection, in the first case, and the logical disconnect, in the second, between the first performance and the proposed alternative. Vacating isn’t an alternative in these cases; it’s just something else that you do, independently of whether or not you make the performance we’re discussing.

Now, vacating is a salient alternative if the value of A is something like remaining-within-the-territory, but that’s not (yet) the performance under question by Narveson or Morris. If it became the performance under question — if Narveson or Morris changed his argument — then I would say that what needs to be precisified is the specification of condition C, not the range of available alternatives. The reason is that if Norton is attempting to rule Twain, there are different sorts of ruling that he might be attempting to impose. If he is attempting to impose an open-ended rule over Twain regardless of where Twain goes, then certainly Twain’s vacating wouldn’t be recognized as refusing consent to the rule. (Some states do attempt to do this, at least in some respects; for example, the U.S. government insists on its right to levy certain taxes on you even if you are living outside the country, and indeed even if you renounce your U.S. citizenship.)

If, on the other hand, Norton is attempting to impose a territorial rule on Twain — roughly, You have to do what I say as long as you stay here, — then there still isn’t any alternative performance that Norton would be counting as a refusal on Twain’s part, since Norton was only asking to rule within that territory to begin with, and so C still obtains even if he doesn’t rule Twain when Twain is outside the territory.

In these cases, Norton’s imposition of C and Twain’s acquiescence to C aren’t a matter of consent, but rather a matter of unilateral command (i.e., where Norton’s performance expresses the giving of a command, and where Twain’s acquiescence expresses compliance with a command).

Now, there are cases where commands can be authoritative. For example, if Norton owns a movie theater and tells Twain that he must turn off his cell phone, then that’s a reason for Twain either to turn off his cell phone or to leave the theater. But I think that these are not cases where complying with the command means somehow consenting to the commanded condition. Twain is obliged either to turn off his cell phone or to leave the theater, not because he consented to turn his cell phone off, but rather because Norton has a right to give commands as to the use of his own person or property. So in this case what’s at issue is Norton’s conditional consent (or refusal) to let Twain use the theater: Twain needs Norton’s consent to use the theater, but Norton has made that consent conditional on Twain turning off his cell phone. Twain may turn off his cell and stay, or he may leave, but in either case his actions amount to compliance with a unilateral command, not to consent.

Which is O.K.; I have a good reason to say that Norton can be justified in making unilateral commands about the use of his own movie theater. (Specifically, a theory of private property.) But if the statist wants to switch from consent-based to command-based justification for imposing the State’s commands over the territory that the State claims, then she’ll have to come up with some kind of explanation for why the State would have commanding authority over that entire territory. If she has no such explanation, the Why don’t you just leave? argument ends up presupposing the legitimacy of the State’s claims of territorial authority in order to justify those same claims — which surely begs the question against the anarchist. But if she has got such an explanation, then it’s that prior right of command, not the consent of the governed which justifies the State’s imposition of conditions on those that it rules. In the former case, the consensualist theory of legitimacy turns out to be viciously circular, and proves nothing about whether or not anyone consents to the State. In the latter case, the statist still hasn’t shown that anyone ever consents to the State; she’s just shown that the consent of the governed turns out to be irrelevant to her theory of legitimacy.

For what it’s worth, I definitely don’t think that references to the cost or the disruptiveness of an alternative can help out here at all. Refusing my consent may be extremely costly or disruptive to my ongoing projects without my consent being (thereby) compromised. For example, suppose you need a kidney transplant in order to survive, and I offer to give you one of my kidneys in return for $1,000,000. If you accept, you live; if you refuse, you die. I don’t think it follows from that that the transfer of $1,000,000 was non-consensual. And, on my end, if I accept, I get $1,000,000; if I refuse, I lose out on $1,000,000. But I don’t think it follows from that that the giving of the kidney was non-consensual. Or suppose that I tell you, Either you say goober peas or I step on your toes. You don’t say goober peas, so I step on your toes. Now, in this case the toe-stomping sucks, but it’s not especially costly, and it’s not especially disruptive either. (Certainly, the person not getting a needed kidney faces worse costs than the person getting her toes stepped on.) But I don’t think that the lack of costliness makes your refusal to say goober peas an expression of consent to the toe-stomping. I think costs are only relevant here if they are costs imposed in violation of your rights to person and property. But once you have those rights spelled out, you already have a theory of the conditions for consent; you don’t need to appeal to costliness or disruptiveness of alternatives anymore in order to get the theory working.

Thanks for the comprehensive reply. It is a good analysis and is very helpful.

As for the transplant example, I suppose that takes us into the “Doing vs. Allowing Harm” problem (or non-problem, I would suspect for many libertarians). Is that a philosophical question that you have spent any time with?

Also, there is an exchange occurring, as well as the possibility that net cost is zero across the board, that could be canceling things out and making the analysis slightly different from the one about the pledge and State force.

Also, on the “goober peas” example, wouldn’t the cost of saying “goober peas” be the proper cost to concern ourselves with (B = saying the phrase, C = stepping on toes)? We were talking about the costs associated with alternative B. It’s still a low cost, as you point out, but I’m not sure low cost examples are particularly problematic. I don’t think a cost proposal, if adopted, would be symmetric, i.e. I don’t think you would have reason to say “If the cost of B is low, action A is more likely consent” even if you could say “If the cost of B is high, action A might not be consent”.

I do think that there is an important moral distinction between doing harm and allowing harm. But I don’t think that it is necessarily very closely relevant to the discussion.

(Presumably, it would affect the interpretation of the Opt-Out Principle — but not in terms of the permissible range for the variable B. Rather, it would affect what would or would not count as placing Twain’s person or property under condition C — if doing and letting amount to the same thing, then there will be many more actions on Norton’s part that would constitute his placing Twain’s person or property under a condition.)

But it’s not very closely relevant because I think there are many forms of doing harm, not just letting harm occur, which don’t compromise consent. For example, I may tell you that unless you give me a room to stay for the night, I’ll publish a series of scurrilous verses, blackening your name for your inhospitality. That would be getting what I want by threatening to do harm to you (specifically, your reputation). But I don’t think it would compromise consent, because the harm I would be doing to you doesn’t affect anything that you have a right to withhold from that harm. (It harms your reputation, but your reputation is just other people’s opinions of you, and you don’t own their opinions.)

Similarly, there are lots of other, more serious ways I could do harm to you without (thereby) compromising the possibility of consent to my conditions: for example, by divesting my money from any of your projects I may be investing in, or by proposing to launch an economic boycott, or to incite a strike, or to encourage people to socially ostracize you, or, or, or…. These may well be much more harmful to you than forms of harm which uncontroversially do compromise consent (for example, a well-organized strike may well cost you more than putting a brick through your window). If so, it must be something other than just the cost of the alternative that is doing work in these cases. But that something can’t just be the doing-vs.-allowing harm distinction, because striking is (I think) certainly doing something which harms you economically.

· October 2009 ·

Excellent discussion, Rad, as usual. I suppose a person could think he’s given consent, but the question is, What would he do if he were really free to refuse consent? Can he truly know what he would do under different circumstances. The Austrian view of entrepreneurial action suggests that a person can’t know for sure. Removing the penalty for withholding consent could easily change a person’s cost-benefit calculations and lead to an alternative outcome.

This is a good analysis (thanks to Sheldon for mentioning it in his blog). The reasoning here reminds me of Rothbard’s contention, in his discussion of drug laws and other forms of paternalism in (I think) For a New Liberty, that not only is it impossible to force someone to act morally (assume you are arguing with someone who thinks drug use is immoral; throwing a drug user in prison doesn’t make the person moral). He makes the stronger claim that drug laws also make it impossible for anyone to act morally. If someone obeys the drug laws, then the person is not acting morally, because action implies (requires) choice. The heavy prohibition penalty precludes choice, and because there is no choice, there can be no morality.

(To be more precise, the prohibition penalty only partially precludes choice, so we should say that to the extent the drug laws are enforced, the smaller the degree “moral behavior” can be attained.)

[…] This facility is currently operating at MARSEC LEVEL 1. Entering this facility is deemed valid consent to security screening or inspection. Failure to consent to security measures will result in denial […]

[…] fine of course but would it also help to use arguments like Charles Johnson’s argument that it is impossible to consent to a state? That seems like it gets around the need to talk about who best can serve the “social order […]

[…] businesses I imagine, export or tourist) that happens to be from AZ just because the government that no one can ever consent to passed a horrible law? If so, it seems to give credence to the idea that “you are where you […]

[…] And, no, it’s not OK because it can be looked at as a take-it-or-leave-it package deal. A woman cannot refuse, and a doctor cannot choose to offer, an abortion option without it. The threat of force and the seriousness of pregnancy do not allow for genuine consent. […]

Interesting discussion (Roderick just linked to this today.) So, by Sartwell’s argument, if I let a group of people taste my yummy chocolate cake, then ask them, at gunpoint, whether they enjoyed it, I can then state that none, no matter what they say, actually enjoyed the chocolate cake?

I agree that there’s now no way for me to know whether they enjoyed the cake (I ruined that possibility at the point I introduced a threat,) but is that the same thing as the stronger statement that none of them actually enjoyed it?

Thanks for the kind words. In reply to your question, I’d basically just reiterate what Roderick said: I agree that if we’re talking about a psychological state, such as enjoyment, then the issue here is purely epistemic: somebody might really like something even if you can’t tell whether or not they really like it. But consent isn’t (merely) a psychological state: it involves public expressions, in way that private psychological states don’t. I think that it makes sense to talk about concealed enjoyment; I don’t think it makes sense to talk about concealed consent. (Concealed from the person being given consent, that is. Obviously, third parties might not know.)

If it helps, I do discuss this issue somewhat in the section which begins with my imagined interlocutor saying
At most this seems like an epistemological problem…, and again in the section where I suggest that That is, in order to defend the claim the claim they are trying to defend, they will need to make some kind of distinction between the property of consenting as such, and the property of expressing consent.

For what it’s worth, this spin on the argument, and the replies to worries that the issue is purely epistemic, are my own doing, not Sartwell’s (his discussion in the book is mostly limited to the block quotes above). But I think it’s a reasonable and charitable interpretation of how Sartwell’s argument is probably supposed to work.

I don’t think that anybody ever consents to private property as a general set of norms, but I’m O.K. with that, because my argument for the norms isn’t based on the claim that everyone consented to them. Would-be rapists generally have not consented to the norm that a woman has the unconditional right to control her own body; but that doesn’t mean that it’s unjust to enforce a prohibition against them raping women. The controlling issue in that case is the woman’s consent or non-consent the use of her own body, not the rapist’s consent or non-consent to treating women like free and equal human beings. My take on my right to, e.g., stop you from driving off with my car or grabbing tomatoes out of my garden is similar. Of course, a statist might also develop a non-consensualist theory of political authority — several have tried — in which case my argument in this essay does nothing to undermine that other, different sort of justification for the State. (I have other, different arguments to do that.) But a lot of statists have historically wanted to try to come up with consensualist justifications (because they have generally been uncomfortable with overt expressions of authoritarianism, and for much the same reason, really, that rapists and rape-enablers often want to imagine that a woman was really, secretly asking for it). My point is that those attempted justifications are mistaken, and in fact, internally incoherent.

For what it’s worth, as a historical matter, whether “private property” is particularly pervasive through history — if that’s meant to indicate something like the kind what I (or other individualists) advocate — depends a lot on how specific you’re getting about it. The basics have pretty much always been around (e.g., the notion that somebody somewhere has some general customary right to continue in individual possession of the fruits of his own labor), but also gross violations have pretty much always been around. These rights have virtually never been held to be universally accessible — women and children have pretty much always been excluded until very recently, as well as captives, lower castes, and enslaved peoples. Rights of homesteading were often completely disregarded in favor of “rights” of conquest, which were taken to establish Pharaoh’s claim to “own” all the arable land in Egypt, and the King of England’s claim to “own” all the deer in the forest and all the fish in the sea. Rights to things that ought to be inalienable, e.g. your body and will, have historically almost always been treated as alienable (hence, slavery), and rights to things that ought to be alienable (e.g. land) have very often been treated as inalienable (hence, feudalism). Claims were often coercively compacted into collective units (so that a femme covert had hardly any rights to dispose of, or even hold onto, the fruits of her own labor, because the income went to the “household,” which meant the husband; peasants with rights to common land had no right to adopt an alternative, non-communal arrangement, even if there was consensus in favor of doing so; etc. Of course, you could insist on a really broad notion of “private property,” so broad that it would encompass the “property” regime of slavocratic Rome, Pharaoh’s claim to “own” all the arable land in Egypt, and the King of England’s claim to “own” all the deer in the forest and all the fish in the sea; but in that case the notion seems so broad as to be meaningless, since it encompasses both a lot of things market Anarchists are interested in justifying and a number of things they are interested in burning to the ground. Or you could insist on a narrower notion, which at least requires the grosser defeaters to be absent, but in that case that certainly hasn’t been pervasive, and lots of people have had lots of alternative regimes inflicted on them.

— 2012 —

[…] So-called public debt is, of course, never contracted by the public (if that means all the people of a particular country) it is contracted by a tiny, parasitic minority that lives at the expense of the rest of the public, and which has arbitrarily declared itself the rightful rulers and the designated collective-bargaining agents of everybody else in the country — whether or not anybody else ever agreed to that arrangement. When banks or foreign governments loan money to a government, they loan it to that tiny, parasitic minority, and they do so with the expectation that their investment will be repaid by means of taxation, which is to say, by means of the money that the government extracts from the public by force. None of the rest of us are ever asked to take on these debts; none of us are ever given any meaningful choice over whether to take on these debts, or how to disburse the money that has been loaned to us; we are just made to pay them against our will. (And it will not help to say that we somehow consented to let the government act as our financial agent, and so consented to cover the costs of the decisions they make on our behalf; nobody ever consents to the State.) […]

— 2015 —

[…] ever be taken by the government as legitimate withholding of consent. Yet if that is true, then nothing you can do could logically constitute consent either. To repeat: if nonconsent is impossible, so is […]

[…] ever be taken by the government as legitimate withholding of consent. Yet if that is true, then nothing you can do could logically constitute consent either. To repeat: if nonconsent is impossible, so is […]

[…] ever be taken by the government as legitimate withholding of consent. Yet if that is true, then nothing you can do could logically constitute consent either. To repeat: if nonconsent is impossible, so is […]

[…] ever be taken by the government as legitimate withholding of consent. Yet if that is true, then nothing you can do could logically constitute consent either. To repeat: if nonconsent is impossible, so is […]

[…] ever be taken by the government as legitimate withholding of consent. Yet if that is true, then nothing you can do could logically constitute consent either. To repeat: if nonconsent is impossible, so is […]

[…] in need of some argument to justify it. I’ve tried looking at the issue a couple of ways in a couple of different places. But those are both arguments that start from within a pretty specific, narrow dialectical context. […]

[…] in need of some argument to justify it. I’ve tried looking at the issue a couple of ways in a couple of different places. But those are both arguments that start from within a pretty specific, narrow dialectical context. […]

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